Democrats in the 2019 Legislature were determined to effectively gut the state’s death penalty law, and so they did. In fact, they went further than they apparently intended.
The new law not only applies to aggravated murder cases yet to occur, it’s retroactive for cases in which new trials or resentencing hearings have been granted and for cases in which someone has been charged but not yet tried.
That’s according to Benjamin Gutman, the state’s solicitor general. His memo comes in the wake of a ruling this month by a Washington County judge that Martin Allen Johnson cannot be sentenced to death in a retrial of his 2001 murder conviction. In that case the judge found that Johnson’s crime, the rape and murder of a 15-year-old girl in 1998, is not aggravated murder under the new law.
The ruling, and Gutman’s email to district attorneys around the state agreeing with it, caught lawmakers off guard. They believed that a second law, approved late in the session, had taken care of concerns that the original bill, Senate Bill 1013, could be applied to cases being retried.
Lawmakers now have three options. They can simply ignore the matter and assume the new death penalty law is, in fact, retroactive. That’s hardly likely to make district attorneys and supporters of the death penalty happy, however.
They can hold a one-day special session to make the new law apply only going forward. Lawmakers will have business in Salem on Sept. 18 and 19, and Sen. Lloyd Prozanski, D-Eugene, and one of the sponsors of the aggravated murder law, will ask Gov. Kate Brown to do just that. Because the measure goes into effect on Sept. 29, that would effectively close the loophole, though both Democrats and Republicans would have to agree to the special session.
Or, lawmakers can wait until the 2020 short legislative session and hope to close the loophole then. That could allow some currently on death row but awaiting resentencing to escape the possibility of the death penalty.
It’s difficult to believe, meanwhile, that had lawmakers not been quite so eager remove most crimes from the possibility of a death sentence, they’d have paid more attention to the details of the bill that passed. They might even have dumped the thing into voters’ hands at that point, which has been the traditional way the state’s death penalty law has been changed.
Their single-minded focus got into their way, however, despite warnings that there could be problems ahead. Now, one way or another, they’ll have to fix those problems.